Patent busters score win as virtual subdomain patent revoked

The US Patent and Trademark Office has once again rejected the claims on a …

A patent for virtual subdomains is being revoked by the US Patent and Trademark office thanks to prior work provided by the Electronic Frontier Foundation. The Office announced its decision today, noting that it rejected all of patent owner Hoshiko's claims since the patent went under examination in 2007.

The patent in question was originally submitted to the USPTO in 1999 by an IP holding company named Ideaflood and somehow managed to get approved in 2004. (The patent eventually got transferred to a new company named Hoshiko.)

Basically, the patent describes virtual subdomains with the idea that it would be impractical for companies with a large number of domains to create new DNS records for each subdomain (like jacquirules.arstechnica.com, for example). The solution would be to use virtual subdomains that put a wildcard in the DNS record—there would only be a single entry, *.domain.com, and it would resolve to a single IP address. The webserver at that IP address would then read the host request and parse it so that it pointed to the specific public HTTP folder residing somewhere on the server.

The Electronic Frontier Foundation took aim at the patent via its Patent Busting Project in 2007, referring to it as a "bogus software patent" that stifled innovation. Together with attorney Rick McLeod, the EFF asked the USPTO to reexamine the patent on the grounds that there was plenty of prior art, including Apache's mod_rewrite module written in 1998 by Ralf Engelschall. Engelschall's work and other people's comments on it were preserved in developer newsgroups and were used to show that this was a commonly understood technology by those "skilled in the art."

The USPTO finally got around to rejecting 20 claims contained within the subdomain patent earlier this year, leaving the folks at Hoshiko to decide whether to amend the claims to make them more narrow. They did, and the claims got rejected once again. "Patent Owner's arguments filed in response of 03/16/2009 have been fully considered but they are not persuasive," the USPTO wrote in its decision. "This action is made final."

Hoshiko can still appeal the decision, but the EFF is happy nonetheless. "This patent was particularly troubling because the company tried to remove the work of open source developers from the public domain and use it to threaten others," EFF Legal Director Cindy Cohn said in a statement. "Ironically, the transparent open source development process gave us the tools to bust the patent!"

The patent in question was originally submitted to the USPTO in 1999 by an IP holding company named Ideaflood and somehow managed to get approved in 2004. (The patent eventually got transferred to a new company named Hoshiko.)

If there was ever proof that the primary reason software patents should go extinct is because the government is simple unable to grant them in a knowledgeable, expeditious manner--this is it. First, it took five years for the submitted patent to be approved--never mind that this should have been plenty of time for the Patent Office to have researched and declared the patent invalid. Five years for approval, and a decade to reach invalid status. Incredible.

Patents are little more than heaven for litigating attorneys. Yet more proof that much of the "law" we must live by is penned strictly for the convenience and wealth of the lawyers who write them. "From your pockets to mine," is the lawyer's creed.

A good start, let's keep it rolling. Now, we need to establish a branch of US government dedicated to busting stupid laws passed by the rest of it. With any luck, they'll cancel each other out and leave the citizenry alone.

Originally posted by scotts13:Now, we need to establish a branch of US government dedicated to busting stupid laws passed by the rest of it. With any luck, they'll cancel each other out and leave the citizenry alone.

This seems pretty much like what the courts are supposed to do, barring that their criteria for "this law sucks, get rid of it" are somewhat narrow.

I am a huge believer in patents, don't get me wrong. Patents are necessary for an organized capitalistic society to function. Patents exist solely to reward the inventor by giving him an artifical, limited monopoly in order to promote the arts and sciences. Not because the inventor "deserves" it. It's not his "right" to have a monopoly over his idea. It never has been. Patents are purely a pragmatic endeavor designed to spur innovation. If one sells the patent, the recipient did not invest in inventing the patented concept. He did not put any effort into improving the sum knowledge of humanity. No, he paid cash. That's it. Every single argument for patents breaks down if you allow the patent to be sold.

Sure, people would scream that outlawing the selling of patents would harm our economy. No, as shown above, it's allowing it in the first place that harms our economy. That bankrupt companies wouldn't be plundered for their patents is a good thing, not a bad thing. Maybe corporations would actually give a damn about going into bankruptcy.

I keep saying that anyone who files a patent should be give an x amount of time (2-3 years maybe) to come up with a product and a business model or license it to someone who does. If anyone sits on a patent for more than that and there is no product the patent should become public so others can take a crack at it and come up with a consumable product. Other than that patents stifle progress and make lawyers rich. And yeah, one should be only allowed to license patents to a third party for the strict purpose of making a product and not to sell a patent.

The problem with compulsory patent expiration is that many projects with extensive IP investment take quite a long time to come to market, and you could wind up killing the parent in childbirth. To protect against that, you'd find inventors sitting on their work until the business model is ready to roll. As a result, a lot of inventions might never escape the lab, and through the inevitable cycle of business in R&D, they might be forgotten completely. This would be a huge damper on innovation.

Consider patents on processes and technology in the production of advanced biofuels, for example... you're dealing with a lot of various industries (fuels, electricity, agriculture, transportation, etc.) that have a lot of well-entrenched procedures (ruts) as it is. If you start a clock when a patent is issued on an innovation in this kind of situation, the company that *does* invest all the resources to put it on its feet might die just when it's ready to go to market. And then all that work is out in the open for scavengers to exploit. If they try to wait until they know they can build it out within the window, they'd spend all their time executing NDAs with myriad partners, ultimately either spreading around the work without protection, or keeping a death-grip on it and drawing out the development process even further.

And as for patent-transfer rights... if a patent were to expire upon transfer, there would be no way for an innovative startup to get bought by a big investor and make big monies for the inventor. IP transfer is what makes the invention profitable for the inventor, especially if the inventor lacks the skills or resources to commercialize it. The ability to sell IP and associated patents is crucial to the business models that drive innovation at the startup level.

If one sells the patent, the recipient did not invest in inventing the patented concept.

So Genentech doesn't invest in its scientists' inventions? IBM doesn't invest in its scientists' inventions? Wow, they should really cut their R&D budgets then.

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Every single argument for patents breaks down if you allow the patent to be sold.

This statement demonstrates a woeful ignorance of the patent system.

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Originally posted by Brandon B:

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Originally posted by deet:And as for patent-transfer rights... if a patent were to expire upon transfer, there would be no way for an innovative startup to get bought by a big investor and make big monies for the inventor.

Why is a licensing deal precluded from accomplishing that goal?

Because no venture capitalist or angel investor is going to touch a company whose crown jewels are owned by an employee-inventor who may at any time leave the company and deprive the company of the fruits of its research and development.

Stop and think about this for a minute. So a startup pours its sweat into inventing some new, revolutionary invention. The inventor files a patent application and is issued a patent. Meanwhile, the startup grows, and they begin marketing the invention. Inventor leaves startup, starts new company, revokes license from startup and sues it for infringement.

Or, let us say the inventor stays at the startup, and the startup flourishes. Its product is a success. Inventor sadly passes away, and his patent is inherited by his daughter, who is a devout socialist and believes that the invention (let's say an expensive but important cancer treatment drug) should be free for everyone. A competing company develops an infringing generic version of the drug and markets it at lower cost. The startup (now a larger company), wants to sue the infringer. The daughter refuses to sue the infringer. No patent holder, no enforcement. The infringer can continue to infringe the patent, and the startup company fails to recoup its R&D costs, and its business fails.

The notion that patent rights should be subject to license but not assignment is an absurd notion that fails to account for the realities of research and development.

The solution would be to use virtual subdomains that put a wildcard in the DNS record—there would only be a single entry, *.domain.com, and it would resolve to a single IP address. The webserver at that IP address would then read the host request and parse it so that it pointed to the specific public HTTP folder residing somewhere on the server.

Hmm, that's surely why the * subdomain is an option in DNS in the first place.

It's certainly how my company back in 1999 offered subdomain web forwarding for clients, and we got that information from the DNS & BIND book and online guides (including mod_rewrite) that must have been written well before this patent was applied for.

This seems to be a victory for patent busters and a hitch in the road for patent holding companies. Each type of entity plays a significant role in the patent system. Here, it is tough to say that a company with a patent can have it yanked away like that. Many would consider that unfair and discouragement to future innovators and thus making the "stifling" argument made by the busters ironic.